The Trustees of Sedom v Chitsonga & Anor. (Civil Cause 1165 of 1993) [1993] MWHCCiv 59 (10 December 1993)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NUMBER 1165 OF 19 93 BETW EEN: THE TRUSTEES OF SEDOM PLAINTIFF and SB CHITSONGA 1ST DEFENDANT and NIXON B MISASA 2ND DEFENDANT Cora m: D F MWAU NGULU, REGISTRAR Nyirenda, Counsel for the Plain tiff Kaliwo, Counsel for the Defendan t ORDER rule 8, On t he 30 t h November, 1993, after hearing an app lication by t he de f endant for stay of execution, apparen tly made the unde r Order 13, defe ndant lodges with the court and serves the judgment cred itor with a full and frank disclosur e of a ssets as requ ired under Order 47, rule 1, wi t hin se ven day s of the stay execu tion will be to orde r, dism issed without further order. The defen dant was rely ing on the new Order 13, Rule 8, of t he Rule s of the Supr eme Court. th at un l ess application I ordered t h e This Ord e r did not exist until 1979. After it was i n tr oduced, it was logic a lly lauded by the author s of the the bene fits it Supr eme Court Practice because of c o nf erred on courts , plaintiffs a nd def endant s. For Cour ts, intr o du c tion of the rule meant t hat def endants wo ul d be more truthful instead of intro ducing shadowy defe nces. goods To avoid execution against defe ndants c ould now directly admit liabi l i ty an d ask the to stay e x ecution upon their goods o n su ch terms c o ur t a s t he c o urt thinks fit, normally on th em pa ying the j u dg ment debt by instalments. For plaint iffs, they are s p ar ed summary j u dg ment under Order 14. Courts benefit becau se there i s d irect r e duction in the business. The defend ant here wa nt ed to t a ke a d vantage of this rule. trouble of having to appl y thei r for th e 2 / •••.. - - two aspects of the r ule which the The re are however , de fendant has not co mplied with to enable the opera t io n of the rule. First it is very very impo rtant that the a pp lication should be made within the ti me st ipulated . If the defendant lodges with the c ourt an ac k no wledgment of service contai n ing a statement that he d oes n ot intend to contest the proceedings and he intends to comply for a s tay of execution of the judgment by writ of fieri f ac ias, the judgment is stayed automatical l y in the first 14 days.· The rule requires that within 14 days, the def endant must issue a summons for such a st ay, which sum mons must be supported by an affidavit in a ccordance wit h Order 47, rule 1 . If the summons is n ot ma de within the 14 day s , the stay of exe c ution does n ot co ntinue. I t is the c ontention of Mr. Nyirenda app earin g for the pl a intiff, that in so f a r as the defendant did not issue the summons within the 14 days, the rule has n o effect. He is right. However, I should mention th at th e rule is subj ect to t he other right of the defendan t to apply for ext ension of time. Unfortunately in this c ase, there was The situation remai ns, th erefore, no such e x tens i on. th a t r ule would not apply. th e the requirement The re is a second aspe c t. Even if the a ppli cation was ma d e within the 14 days required, the def e nd an t did not the com ply with a pp lication must be in a c c ordance with Order 47, rule 1 of the Rule s of the Sup reme Court. The defendant did not fil e an affidavit as is required under Order 47, rule 1(3). The statutory p o wer for s t ay of execution is section 15 of th e Sheriff Act which has the same requirements as Order 47, Rule 1 ( 3 ). therefore, did not comp ly fully The defendant, wit h Order 13, rule 8. an affi davit supported by t hat r ule the in The re are, therefore , two aspects of the rquir ements to Or d er 13, r ule 8 which the plaintiff did no t com ply with. c ontends the appli catio n Hr. Nyirenda should that the refore, be dismissed. Hr. Kaliwo app earin g for the def endant applied for extension of time in whic h to file su c h an affidavit. If the defendant does n ot com ply with the stipulations of time under Order 13, rule 8 , he can for stay of s ti ll a ppl y , e xe c ution under Order 47, rul e 1. if the d e f endant h a d c omplied with Order 47, rule 1(3) , I would h a ve ordered st a y, independent of Order 13 , rul e 8. The ma t ter, how e ver, must b e looked at in its total lity with the view to do justice to both parties and savi ng costs. Thi s does n o t mean that the rules of Cour t sho uld be independent of the rule, Obv iousl y 3 I •• . . - - brok en any time by litigants. The better approa ch is to stat e that the situation here is an irr egula rity and p roc eed under Order 2, rule 1. That is why on the 30th Nove mber, 1993, I made the unless order just me ntioned. Made in Chambers this 10th day of Decembe r, 199 3. uJL· C I, o · REGISTRAR ngul u E HIGH COURT